Government Contracts & Investigations Blog

Latest updates on Developments Affecting Government Contracts & Investigations

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The National Institute of Standards and Technology (“NIST”) is seeking comments on its draft NIST SP 800-160, Volume 2, Revision 1, “Developing Cyber-Resilient Systems: A Systems Security Engineering Approach,” and draft NIST SP 800-53A, Revision 5, “Assessing Security and Privacy Controls in Information Systems and Organizations.” The public comment periods currently are open and conclude on September 20, 2021 and October 1, 2021, respectively.
Continue Reading Double Time – NIST Seeks Comments on Major Revision to Practices for Developing Cyber-Resilient Systems (SP 800-160) and Assessing Security and Privacy Controls in Information Systems and Organizations (SP 800-53A)

The U.S. Small Business Administration (“SBA”) recently announced that, yet again, the federal government exceeded its small business contracting goal by awarding $145.7 billion dollars in federal prime contracts – 26.01% of the government’s total procurement spending – to small businesses last year, with at least an additional $82.8 billion in small business subcontracts. The SBA released statistics in its FY 2020 Small Business Procurement Scorecard, available here. Notably, while small business contracting increased $13 billion in prime contracts, small business subcontracting may have decreased by an estimated $7.9 billion. Other Scorecard highlights include that the U.S. government exceeded
Continue Reading Small Business Federal Government Contracting Dollars Continue to Increase

Change is in the air for the Buy American Act (“BAA”). On July 30, 2021, the Federal Acquisition Regulatory Council published a proposed rule to the Federal Acquisition Regulation (“FAR”) to implement President Biden’s Executive Order 14005, on “Ensuring the Future is Made in America by All of America’s Workers,” which seeks to further strengthen U.S. Buy American laws and further encourage domestic procurement (previously discussed here). A public meeting to discuss the proposed rule is scheduled for August 26, 2021, and comments will be due September 28, 2021. This blog article summarizes the new BAA proposed rule, offering
Continue Reading Fasten Your Seatbelts – Proposed Rule Implementing Biden’s “Buy American” Mandates

On July 30, 2021, the Special Inspector General for Pandemic Recovery (“SIGPR”), Brian D. Miller, submitted his quarterly report to Congress.  SIGPR was created as an independent watchdog of the Department of the Treasury under the CARES Act.  It is tasked with investigating fraud and abuse of federal stimulus funds in response to COVID-19, and works in collaboration with law enforcement and U.S. Attorney’s Offices throughout the country.  These investigative efforts have resulted in civil and criminal enforcement actions against recipients of federal funding throughout the country, and such enforcement action investigations are sure to continue.  The quarterly report showed
Continue Reading The Special Inspector General for Pandemic Recovery Calls For Increased Funding and Expanded Jurisdiction In Its Quarterly Report To Congress

On August 5, 2021, the U.S. Court of Appeals for the Second Circuit ruled that a French banker may seek dismissal of an indictment  without having to physically appear in the United States.  The decision limits the application of the “fugitive disentitlement” doctrine – which has long prevented foreign nationals from challenging criminal prosecutions without appearing in the United States to do so.
Continue Reading The Second Circuit Court of Appeals Finds That French Banker Need Not Travel to the United States to Seek Dismissal of Her Indictment

In Securities & Exchange Comm’n v. Fowler, No. 20-1081, 2021 WL 3083655 (2d Cir. July 22, 2021), the United States Court of Appeals for the Second Circuit upheld a lower court judgment awarding the Securities and Exchange Commission (“SEC”) civil penalties, disgorgement, and injunctive relief in a securities fraud action against a broker engaged in unsuitable and unauthorized high-frequency trading.  The district court entered its judgment following a jury trial finding the defendant guilty of violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and Sections 17(a)(1), 17(a)(2), and 17(a)(3) of the Securities
Continue Reading Second Circuit Upholds Enforceability of SEC Tolling Agreements

The FedRAMP Program Management Office is seeking comments on its draft FedRAMP Authorization Boundary Guidance, Version 2.0, released on July 13, 2021. The public comment period currently is open and closes on September 13, 2021.
Continue Reading Watch Your Boundaries – FedRAMP Releases Draft Authorization Boundary Guidance for Public Comment

Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge
Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies

As called for in the May 12, 2021 Cybersecurity Executive Order (“EO”) released by the Biden Administration (discussed here), NIST met its deadline to release a definition of “critical software” within 45 days of the date of the Order.  The determination of what constitutes “critical software” is a key step in the process set forth in the Order for securing the software supply chain, which will culminate sometime next year in new Federal Acquisition Regulations for contractors that supply software.
Continue Reading Right on Time – NIST Releases Definition of “Critical Software” Per Biden’s Cybersecurity Executive Order

Ignore our prior prediction—the U.S. Court of Federal Claims definitely is NOT remanding the protest by Medline Industries, Inc. (“Medline Protest’) to the agencies for corrective action.  In a surprisingly scathing opinion issued June 22, 2021 by Judge David A. Tapp, the court made one thing very clear—the Department of Veterans Affairs’ (“VA”) transfer of its Medical Surgical Prime Vendor (“MSPV 2.0”) requirements to the Defense Logistics Agency (“DLA”) is dead on arrival.  After issuing a brief order on June 17 denying remand to the agencies for corrective action, the court detailed its reasoning in an opinion issued in
Continue Reading Duck Hunt – The VA Cannot Escape The Medline Protest, And Takes A Few Shots In The Process

In February 2021, President Biden issued Executive Order 14017, “Executive Order on America’s Supply Chains” (discussed here), requiring (among other things) a report within 100-days requiring key government agencies to assess vulnerabilities and consider potential improvements to supply chains in four critical industries – (i) semiconductor manufacturing; (ii) high capacity batteries; (iii) rare earth elements; and (iv) pharmaceuticals.
Continue Reading At a Glance: White House 100-Day Supply Chain Report

In Van Buren v. United States, No. 19-783 (U.S. June 3, 2021), the United States Supreme Court issued an opinion drastically limiting the application of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030 et seq.), holding that the “exceeds authorized access” clause of the Act applies only to those who obtain information from particular areas in the computer—such as files, folders, or databases—to which the individual is not authorized to access under any circumstances. However, the Supreme Court excluded application of the clause to individuals who misuse their access to obtain information otherwise available to
Continue Reading Supreme Court Resolves Circuit Split Over CFAA

The U.S. Department of Veterans Affairs (“VA”) Medical Surgical Prime Vendor (“MSPV”) 2.0 Program (discussed previously here and here) has yet to make it off the ground, but in March 2021 the VA announced plans to eliminate the program by September 2023 and instead purchase from the Defense Logistics Agency’s (“DLA”) separate MSPV catalog. The VA and DLA MSPV programs are how the VA and DLA (separately) purchase most of their medical, surgical, and laboratory equipment for care centers across the country (and abroad, in the case of DLA). The VA and DLA have been exploring the possibility of
Continue Reading Ducks (Not) in a Row – VA Agrees to Take Corrective Action in Transitioning MSPV 2.0 Requirements to DLA

The National Institute of Standards and Technology (“NIST”) is seeking comments on its draft NIST SP 800-161 Rev. 1, “Cyber Supply Chain Risk Management Practices for Systems and Organizations,” published on April 29, 2021. The public comment period currently is open and concludes on June 14, 2021. NIST anticipates releasing a second draft in September 2021, with a final version anticipated to be released by April 2022.
Continue Reading Seeking HoNIST Opinions – NIST Invites Comments on Major Revision to Cyber Supply Chain Risk Management Practices for Systems and Organizations (SP 800-161) and Provides Further Software Supply Chain Guidance

On May 12, 2021, the Biden Administration issued its much anticipated “Executive Order on Improving the Nation’s Cybersecurity.” Below are provisions we believe will be of most interest to contractors, as well as any company that provides information technology (“IT”) and operational technology (“OT”) services, cloud computing, software, or internet of things (“IoT”) technology, as the new regulations and standards called for in the Order are likely to have an impact beyond government contractors.
Continue Reading Biden’s Cybersecurity Executive Order

The Biden Administration has taken (at least temporarily) the teeth out of a Trump-era Executive Order that directed the government to “Buy American” for essential drugs and medical devices. President Trump’s August 2020 Executive Order on Ensuring Essential Medicines, Medical Countermeasures, and Critical Inputs Are Made in the United States (Executive Order 13944) aimed to reduce dependence on foreign drugs and devices critical to the U.S. public health sector, in part by requiring that the U.S. Trade Representative remove those essential items from the coverage of any international free trade agreement. On April 20, 2021, the Biden Administration withdrew just
Continue Reading “Buy American” Update: Essential Medicines May Continue to Come From Abroad (For Now)